In re Muir. the Gleneden
| Citation | 41 S.Ct. 185,65 L.Ed. 383,254 U.S. 522 |
| Decision Date | 17 January 1921 |
| Docket Number | No. 18,18 |
| Parties | In re MUIR. THE GLENEDEN |
| Court | United States Supreme Court |
Messrs. John M. Woolsey and J. Parker Kirlin, both of New York City, for petitioner.
[Argument of Counsel from page 523-524 intentionally omitted] Mr. Homer L. Loomis, of New York City, for respondent.
Messrs. F. R. Coudert and Howard Thayer Kingsbury, both of New York City, in behalf of the British Embassy, by leave.
[Argument of Counsel from pages 524-527 intentionally omitted] Mr. Justice VAN DEVANTER delivered the opinion of the Court.
On July 28, 1917, the Gleneden, a British steamship privately owned, and the Giuseppe Verdi, an Italian steamship similarly owned, came into collision in the Gulf of Lyons, both being seriously damaged. November 7, 1918, the British owner of the Gleneden commenced a suit in rem in admiralty against the Giuseppe Verdi in the District Court for the District of New Jersey to recover damages occasioned by the collision, and a few days later the Italian owner of the Giuseppe Verdi commenced a like suit against the Gleneden in the District Court for the Eastern District of New York. The libel in each suit attributed the collision entirely to negligence of servants and agents of the owner of the vessel libeled, it being alleged that she was in their charge at the time. When the suits were begun the vessels were within the waters of the United States and each was within the particular district where libeled.
The proceedings in the suit against the Gleneden are of immediate concern. After process issued and the vessel was arrested, private counsel for the British Embassy in Washington, appearing as amici curiae, presented to the court a suggestion in writing to the effect that the process under which the vessel was arrested should be quashed and jurisdiction over her declined, because, as was alleged, 'the said vessel is an admiralty transport in the service of the British government by virtue of a requisition from the Lords Commissioners of the Admiralty, and is engaged in the business of the British government, and under its exclusive direction and control and is under orders from the British Admiralty to sail from the port of New York on or about November 25, 1918, to carry a cargo of wheat belonging and consigned to the British government'; because the court 'should not exercise jurisdiction over a vessel in the service of a cobelligerent foreign government'; and because 'the British courts have refused to exercise jurisdiction over vessels in government service, whether of the British government or of allied governments, in the present war, and that by comity the courts of the United States should in like manner decline to exercise jurisdiction over vessels in the service of the British government.' An affidavit of the master of the vessel affirming the truth of much that was alleged accompanied the suggestion. The libelant, being cited to show cause why the suggestion should not be acceded to, responded by objecting that it was not presented through official channels of the United States and by denying that the facts were as alleged.
A hearing on the suggestion was had in which the libelant and counsel for the British Embassy participated—the latter only as amici curiae—and at which the owner of the Gleneden was represented informally, without an appearance. In the course of the hearing counsel for the libelant called on the others to submit proof in support of the allegations in the suggestion, particularly to produce the ship's articles and other instruments bearing on the suggested public status of the vessel, and the present the master for examination; but both the counsel for the British Embassy and the representative of the owner refused to do any of these things and insisted that the court was bound on the mere assertion of the claim of immunity to quash the process and release the vessel. The libelant produced the libel in the suit against the Giuseppe Verdi, depositions given in that suit by the master and other officers of the Gleneden, a certificate from the customs officers in New York showing the report and entry of the Gleneden on her arrival, and other evidence, all tending measurably to show that the vessel was operated by her owner under a charter party whereby the owner was to keep her properly manned, furnished and equipped, was to assume any liability arising from negligent navigation, and was to bear all loss, injury or damages arising from dangers of the sea including collision. 'On all the facts' thus put before it, the court found that 'the Gleneden was owned by and was still in the beneficial possession of the Gleneden Steamship Company, Limited, a private British corporation, who through its servants, was in the actual control of the steamer and of her navigation, but engaged in performing certain more or less public services for the British crown under a contractual arrangement amounting to the usual or government form of time charter party.' The court 'decided accordingly that the Gleneden was not a public ship in the sense that she was either a government agency or entitled to immunity,' and the suggestion was overruled and an order was entered to the effect that the vessel would be released only on the giving of a bond by the owner securing the claim in litigation or a bond to the marshal conditioned for the return of the vessel when that could be done consistently with the asserted needs of the British government.
Afterwards, on November 29, 1918, the master, appearing specially for the interest of the owner and for the purpose of objecting to the arrest and detention of the vessel, interposed a special claim to the effect that the Gleneden Steamship Company, Limited, was the true and sole owner of the vessel and he as master was her true and lawful bailee; and also interposed therewith a peremptory exception to the jurisdiction of the court on the grounds taken in the suggestion on behalf of the British Embassy. This claim and exception concluded with a prayer that the process be quashed and the vessel released. The exception was not set down for hearing and remains undisposed of. There was no appearance by either the owner or the master save as just stated; nor was there any appearance by the British government or by any representative of that government other than through the suggestion which counsel for the Embassy in Washington presented as amici curiae.
After filing the special claim and exception, the master applied to the Circuit Court of Appeals for the Second Circuit for writs of prohibition and mandamus preventing the District Court from exercising further jurisdiction and commanding it to undo what had been done; but the application was denied for reasons which need not be noticed now, 255 Fed. 24, 166 C. C. A. 352.
A few days later an arrangement was effected whereby an acceptable surety company undertook to enter into and file a stipulation for value in the usual form and in a sum to be named by the libelant, not exceeding $450,000, unless on an intended application to this court for a writ of prohibition the vessel should be held immune from the process under which she was arrested and detained. Following that arrangement, on December 10, 1918, the District Court entered the following order:
'On the annexed agreement for security,...
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